By Veronika Flegar, University of Groningen, v.l.b.flegar(at)rug.nl

On 2 June 2016, the Office of the High Commissioner for Human Rights (OHCHR) organized an expert meeting titled “Non-refoulement in International Human Rights Law” in Geneva. During the meeting, representatives from academia, the International Organization for Migration (IOM), the United Nations High Commissioner for Refugees (UNHCR), OHCHR, the EU Fundamental Rights Agency (FRA), the United Nations Children’s Fund (UNICEF), human rights treaty bodies and courts as well as members of non-governmental organizations voiced their ideas on this matter. The meeting aimed to clarify the scope and future of the principle of non-refoulement as well as to highlight possible legal and policy avenues and challenges. One of our GHLG members, Veronika Flegar was invited to speak about her research on extreme poverty, vulnerability and non-refoulement.

The principle of non-refoulement is a principle of both refugee law and international human rights law (IHRL). In refugee law, the principle is linked to the grounds of persecution outlined in Article 1(A)2 of the 1951 Convention relating to the Status of Refugees and can be limited for reasons of public security.[1] In IHRL, on the other hand, the principle has evolved much further due to being linked to the prohibition of torture and inhuman or degrading treatment rather than to the persecution context.[2]

At the beginning of the event, Vincent Chetail, Professor at the Geneva Institute highlighted that non-refoulement is linked to both the inhuman and degrading treatment framework and to the positive rights doctrine. He pointed to the fact that the notion of degrading treatment remains the crucial aspect for refining non-refoulement. He also highlighted that this notion can, but does not necessarily have to, overlap with the persecution context of refugee law: degrading treatment is more objective whereas persecution is generally considered to be personal.

During the first discussion session on the purpose and objective of the principle of non-refoulement in IHRL, Pablo Ceriani, member of the UN Committee on Migrant Workers, drew attention to the problematic distinction between refugees and economic migrants. He pointed to the fact that, while refugees are a legal category, economic migrants are not. Hence, he argued, there is a need to redefine forced migration and, in so doing, ensure that the rights of individual persons are put above state sovereignty considerations.

The second session dealt with the question of the scope of protection of the principle of non-refoulement in IHRL. Massimo Frigo from the International Commission of Jurists highlighted the fact that also other rights might potentially provide grounds for non-refoulement in the European Court of Human Rights. The relevant questions to be asked in this respect, he argued, are whether a flagrant breach has taken place and whether the violation touches upon a fundamental right in a democratic society. In addition, he raised the question of whether the content and scope of non-refoulement in IHRL might or should be defined around the idea of a minimum core more prominently in the future.

The third session, which was concerned with the movement towards a broader understanding of non-refoulement, focused in particular on the question of protection from economic, social and cultural rights violations. First, Jane McAdam, Professor at the University of New South Wales, highlighted problematic aspects of climate change-induced migration. Then, GHLG member Veronika Flegar focused on extreme poverty and non-refoulement in the European Court of Human Rights. She emphasized the slow movement from the former exceptional circumstances standard towards, what she calls a vulnerability standard.[3]

The final session revolved around the question of the most suitable instrument to pursue. Elspeth Guild, Professor at Queen Mary University of London, emphasized how non-refoulement seems to have escaped all the treaties which originally envisaged it and can thus be considered a principle which is on the move. During the ensuing discussion, questions were raised whether pushing for a broader scope of non-refoulement might not eventually cause states to resist this move which would result in less rather than more protection in the end. Strategic litigation was emphasized as one possible avenue to push forward the development of the principle of non-refoulement (particularly in the context of UNHCR interventions in human rights cases at the national and international level). Soft law instruments in a similar fashion as the Guiding Principles on Internal Displacement were also suggested. At the same time, it was emphasized that non-refoulement has taken a special path in international law through evolving from what had been envisaged in the treaties into something much more broadly applicable. Hence, concerns were raised as to whether determining the scope and content of non-refoulement in any specific instrument might not unintentionally limit or even stop this development.

[1] Article 33

[2] See, e.g., Convention Against Torture, Article 3, International Covenant on Civil and Political Rights, Article 7, European Convention on Human Rights, Article 3.

[3] Compare Flegar, Veronika (2016), Vulnerability and the Principle of Non-Refoulement in the European Vourt of Human Rights: Towards an Increased Scope of Protection for Persons Fleeing from Extreme Poverty, Contemporary Readings in Law and Social Justice, 8(2): 148-169, available at: http://www.addletonacademicpublishers.com/contents-crlsj/649-volume-8-2-2016/2747-vulnerability-and-the-principle-of-non-refoulement-in-the-european-court-of-human-rights-towards-an-increased-scope-of-protection-for-persons-fleeing-from-extreme-poverty [accessed 07-06-16] and earlier blogs on this issue:  Flegar, Veronika (2015), Returning Persons with a Medical Condition to their Home Country: Still a Contentious Issue, Global Health Law Groningen Blog, available at: https://www.rug.nl/research/groningen-centre-for-law-and-governance/expertisecentra/ghlg/blog/returning-persons-with-a-medical-condition-to-their-home-country-31-03-2015 [accessed 07-06-16] and Flegar, Veronika (2016), Towards Individualized Vulnerability in Migration Policies, Global Health Law Groningen Blog, available at> https://www.rug.nl/research/groningen-centre-for-law-and-governance/expertisecentra/ghlg/blog/towards-individualized-vulnerability-in-migration-policies-02-11-2018 [accessed 07-06-16].